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Possession of Child Pornography is No Joke

April 25, 2024

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As a result of state and federal law enforcement's development of new technologies to detect child pornography, and the easily accessible illegal materials available on the internet, child pornography cases are consistently on the rise. Miami criminal lawyers have seen an uptick in these cases. It is unlawful for any person to knowingly possess, control, or intentionally view a photograph, motion picture, exhibition, show, representation, image, data, computer depiction, or other presentation which, in whole or in part, he or she knows to include child pornography.

Man in Handcuffs While Facing Charges of Possession of Child Pornography
In a recent case, Google became aware that child pornography files had been downloaded through their server and notified the National Center for Missing and Exploited Children. The Center investigated the matter and determined in fact that child pornography had, in fact, been downloaded and notified the South Florida Crimes Against Children Task Force. The task force was able to determine which computer was used to download the images by tracking the IP address. Police investigators obtained a search warrant for the address that was linked to the internet account. With the warrant in hand, the detectives entered the residence and seized computer equipment. A forensic search of the computer revealed at least ten child pornography images and/or videos.

Child pornography is generally defined as any image that depicts any child under the age 18 engaging in sexual conduct. Both State and Federal Law criminalize the possession or production of child pornography. The mere possession of images is a very serious crime and is treated harshly by both state and federal prosecuting authorities. Child pornography is not protected by the First Amendment of the Constitution. Florida law generally prohibits the possession or production of child pornography. Every count of possession of child pornography is a third-degree felony punishable by up to five years in prison. Producing or promoting child pornography is a second-degree felony punishable up to 15 years in prison. Florida Law allows the judge to stack the penalties and sentence the defendant concurrently.

Like State Law, there are Federal Statutes prohibiting the production, distribution, and possession of child pornographic images. The Federal Sentencing Guidelines allow for sentencing enhancements if the government can prove that the images contain children under the age of 12 or can show that the images are sadistic or masochistic in nature. Under Federal Law, each count of mere possession of an image carries a 5-year prison sentence that can also be stacked for each image. Production or distribution of child pornography carries a 15-year sentence for each count.

Arrests for possession of child pornography usually occur as a result of law enforcement agencies becoming aware that child pornography is being downloaded to a particular IP address. Both state and federal law enforcement agencies have many computer-related tools to allow them to discover the downloading of child pornography. Once they have an IP address, they can contact the internet provider and locate the billing address where the computer is being used. With that information in hand, detectives will appear at the residence with a search warrant allowing them to seize all computers located at that address. The Miami criminal lawyers at DMT have seen cases recently where customs is randomly searching individual's phones prior to entry into the United States. Before entering the country, a person cannot avail themselves of the typical search and seizure laws and are prosecuted the same as those with child pornography found in their home.

Close-Up of Digital Investigation To Represent the Work of Fedearl and State Law Enforcement
Usually, more than one person lives at any particular address, which makes it difficult to determine who is ultimately responsible for the downloading of the images. After the warrant is executed, the police will forensically look into each computer device seized. If child pornography is recovered from a computer, law enforcement will return to the address where the computer was seized and attempt to speak with any suspects. Of course, Miranda warnings must be provided to anyone being questioned in regards to the investigation.

The most important thing any suspect can do is invoke his or her right to remain silent and consult with a Miami criminal lawyer. Any admission to the possession or downloading of child pornography coupled with computer forensic evidence will lead to an arrest and prosecution. Without statements admitting to the downloading of child pornography, defenses may exist, making it difficult for the state or the feds to prove which individual at the residence is actually responsible.

Anyone who is being investigated for or charged with possession or production of child pornography should contact DMT as soon as possible so their rights are protected. The earlier an attorney is contacted, the more defensible the case will be. Remember, there are defenses to child pornography charges. Knowledge is an essential element. A lack of knowledge is a viable defense. Speaking to law enforcement may remove that defense, so always invoke your rights. Contact Donet, McMillan & Trontz at (305) 444-0030 for more information, today.
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